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LEAVE TO SUE.
VI. LEAVE TO SUE ON PERSONAL OBLI. GATION,
INDEPENDENTLY OF FORECLOSURE.
I. LEAVE TO SUE IN AID OF ATTACH
MENT. FORMS. (301) Affidavit to move for leave to
sue with sheriff in aid of
attachment. (302) Order giving plaintiff in at
tachment leave to sue in name of sheriff and him
self. (303) Undertaking given sheriff be
fore suing on things in action taken by him on attachment.
FORMS. (312) Affidavit to move after fore
closure for leave to sue for deficiency a party to the
foreclosure. (313) Notice of motion for leave to
sue for deficiency after fore.
closure. (314) Petition for leave to sue for
deficiency one who was not
a party to the foreclosure. (315) Order to show cause why
leave should not be granted
to sue for deficiency. (316) Order giving leave to sue for
deficiency. (317) Order to show cause why
leave should not be granted after suit brought without
it. (318) Order granting leave after
suit brought without it.
II. LEAVE TO SUE ON A BOND OR UN
DERTAKING CONDITIONED TO PAY
WHEN REQUIRED BY THE COURT. FORMS. (304) Affidavit of applicant for
such leave. (305) Order that bond or under
taking be delivered up to be sued.
III. LEAVE TO SUE ON OFFICIAL BOND). FORMs. (306) Petition for leave to sue on
such bond. (307) Order granting leave to sue
on official bond.
IV. LEAVE TO SUE ON PRIVATE BOND TO
PEOPLE OR A PUBLIC OFFICER.
VII. LEAVE TO SUE ON A JUDGMENT. FORMS. (319) Affidavit to move for leave to
sue on a judgment in the court in which it was re
covered. (320) Notice of motion for leave to
sue on judgment in same
court. (321) Petition for leave to sue on
judgment recovered in an
other court. (322) Order to show cause on peti
tion for leave to sue ot
judgment in another court. (323) Order granting leave to sue
on a judgment.
FORMS. (308) Petition for leave to sue on
an undertaking to discharge
a mechanic's lien. (309) Order granting leave to pri
vate person to sue on bond to people or a public officer.
V. LEAVE TO SUE ON THE BOND OF AN
EXECUTOR, ADMINISTRATOR, ETJ. FORMS.
(310) Petition to the surrogate. (311) Order of surrogate granting
leave to bring action on bond
executor, adminis trator, etc.
VIII. LEAVE FOR ACTIONS BY OB
AGAINST INCOMPETENTS. 1. Leave to sue incompetent. 2. Leave to sue committee. 3. Appointment of committee pending
action. 4. Claim against committee.
5. Granting leave.
(331) Order giving leave to prose
cute as a poor person. (332) Order denying leave to prose
cute as a poor person.
XI. LEAVE FOR ACTION IN NATURE OF
QUO WARRANTO. FORMS. (333) Petition by attorney-general
for leave to sue to annul a
charter. (334) Request to attorney-general
IX. LEAVE FOR INFANT TO BRING
PARTITION SUIT. Forus. (326) Petition of infant or guardian. (327) Order of surrogate giving in
ACTIONS BY OB AGAINST RECEIVERS, COMMIT
fant leave to bring parti-
X. LEAVE TO SUE AS A POOR PERSON
(IN FORMA PAUPERIS).
1. Power of the court.
as a poor person.
of action. (330) Agreement by counsel to serve
TEES, OR OTHER TRUSTEES. FORMS. (335) Petition by a receiver or
other trustee for leave to
sue. (336) Order giving receiver or other
trustee leave to sue. (337) Petition of committee of lu
natic, etc., for leave to sue. (338) Petition for leave to sue a re
ceiver or other trustee. (339) Notice of presentation of pe
tition for leave to sue.
FORM No. 301.
Affidavit to move for leave to sue with sheriff in aid of attachment.77
A. B., the plaintiff herein, being duly sworn, says:
77 Under N. Y. Code Civ. Pro, 88 677, 678. The sheriff may bring such an action without leave. David. son v. Chatham National Bank, 32 Hun, 138.
If the sheriff has not brought such an action, the court must give the attaching creditor leave. Code Cir. Pro., $ 678.
If the object is to impeach a fraudulent transfer of the assets, the better course is to proceed with the levy, thus provoking an action from those who claim under the fraudulent transfer, or to bring a common-law
action to get possession or collect, in either of which the validity of a transfer of leviable property may be impeached, and after judgment in the attachment suit, the validity of a transfer of a chose in action may be impeached (Carr v. Van Hoesen, 26 Hun, 316; Throop Grain Co. 1. Smith, 34 id. 91); or to get judgment and take an order in supplementary proceedings.
A creditor's action will not lie in aid of an attachment before judgment (Bowe 1. Arnold, 31 id. 256), except under Code Civ. Pro., $ 655, subd. 2,
defendant above named [indicate briefly its nature], and is now pending in this court [indicate condition of cause].78 II. That on or about the
19 plaintiff duly applied in this action for a warrant of attachment against the property of the defendant, and such warrant, a true copy whereof is hereto annexed, was duly issued, and delivered to M. N., sheriff of the county of
III. That, as deponent is informed and believes, one 0. P. then had in his possession [specifying property], belonging to said defendant [or, was indebted to said defendant in the sum of
dollars for — stating briefly the causes of action to be sued on: see Forms in Chapter VII, under ATTACHMENT.
IV. That, as deponent is informed and believes, on or about the day of
19 said sheriff, by virtue of and under said warrant, duly levied upon said cause of action and debt [by taking the said note into his actual custody,- or, if a chose in action not capable of manual delivery, duly levied upon said property and right of action by leaving a certified copy of the warrant, and a notice showing that said
was attached, with said 0. P.7'], whereby, for the benefit of plaintiff, said sheriff became entitled to receive said
from said 0. P., and said O. P. became answerable to said sheriff therefor.
V. That, as deponent is informed by [said sheriff], and believes, no other property was levied on under said attachment (or otherwise show reasonable necessity of collection from the third person, in order to secure plaintiff's demand.]
VI. That, as deponent is informed by said sheriff, and believes, said O. P., notwithstanding said levy and due demand, refuses to pay over to the said sheriff, or account for, said
and said sheriff has been unable to collect the same [or, to reduce
where the sheriff is permitted to sue (and under $8 677 and 679. the creditor permitted to join), where the summons was served by publication or without the state, and the defendl. ant has made default. Whitney v. Davis, 148 N. Y. 256; Harding v. Elliott, 91 Hun, 502, 36 N. Y. Supp. 648, 25 Civ. Pro. 294.
78 If the application is for leave to sue before judgment obtained (under Code Civ. Pro., § 655, subd. 2) the
affidavit must show the substituted service of the summons and the fact that the defendant is in default. Whitney v. Davis, 148 N. Y. 256.
79 Or otherwise allege such a levy as is described in and required by N. Y. Code Civ. Pro., $ 649. Substantial compliance with these requirements is essential to the validity of the levy. Hayden r'. Bank, 130 N. Y. 146; Courtney v. Eighth Ward Bank, 154 id. 688.
the same to possession]; and that an action is necessary to recover the same.
VII. That deponent desires leave to bring and maintain, in the name of himself and the sheriff jointly, by his own attorney and at his own expense, such action or actions against O. P. as are by law allowed in such case.
VIII. That, as deponent is informed by [said sheriff], and believes, no other attachment has been levied on said cause of action or debt [except an attachment levied on the day of
at suit of one C. D., whose attorney is R. S., of No. street, in
or annex and refer to a certificate of the sheriff]. [Jurat.]
[Signature.] [Under N. Y. Code Civ. Pro., $ 677, annex Notice of motion (Id., § 678), and Proof of service, on sheriff,80 and on attorney for any other attaching creditor.]$1
FORM No. 302.
may be made by the judge who
granted the warrant.]. [Title of the attachment action.]
On reading and filing the annexed affidavit of A. B., plaintiff herein, verified the day of
19 and proof of service of due notice of this motion upon M. N., the sheriff of the County of
therein named (and to C. D., the plaintiff in the junior attachment therein mentioned], and on motion of Q. R., attorney [no one appearing in opposition] :
ORDERED, that the plaintiff above named have leave to bring and maintain in the name of himself and the said sheriff jointly, by his own attorney, and at his own expense, and subject to the direction of this court [here specify the proposed action, or, generally] any action or actions which he may be advised to be neces
80 Failure to serve sheriff with notice of this application is not an objection which the defendant in the subsequent action can raise. Dunn v. Arkenburgh, 48 App. Div. 518, 62 N. Y. Supp. 861; 31 Civ. Pro. 67;
aff’d on opinion below, 165 N. Y. 669.
81 Requirement of service on any other attaching creditor is discretionary, but may properly be made by the moving party before presenting his application.
sary for the purpose of collecting and recovering all debts, effects, and things in action attached by said sheriff, under the attachment in said affidavit mentioned, or of reducing to actual possession any articles of personal property capable of manual delivery, and which have been so attached, but of which said sheriff has been unable to obtain possession.
[PROVIDED, however, and this order is upon condition that - specifying conditions and regulations imposed, if any. See Forms No. 114 and 115 for examples of conditions generally, and Form No. 336 (below), for a requirement of security.]
[Authentication, as in Form No. 108, p. 265.]
FORM No. 303. Undertaking given sheriff before suing on things in action taken by him on
attachment. [Title of court and attachment action.] Whereas, V. V., sheriff of the county of
has herein attached a claim of the defendant against O. P. (or otherwise designate the claim], concerning which it is necessary to commence one or more actions; and whereas, said sheriff has consented that such action may be prosecuted by the above-named plaintiff, or under his direction and in said sheriff's name, on this undertaking being given: Now, therefore, we, A. B., residing at
and C. D., residing at , hereby jointly and severally undertake that the plaintiff herein will indemnify said M. V., sheriff as aforesaid, from all damages, costs and expenses on account of said actions, or either of them, not exceeding the sum of
dollars in any one action, or the sum of
dollars in the aggregate. [Date.]
[Signatures.] [Acknowledgment as in Form No. 1, p. 3; affidavits of sufficiency as in Form No. 252.]